Procedural rule changes take effect March 1

The North Dakota Supreme Court’s annual amendments to the procedural rules will take effect March 1. The Court has adopted two completely new rules and amended several more.

In the Rules of Criminal Procedure, new Rule 4.1 entitled “Complaint, Warrant, or Summons by Telephone or Other Reliable Electronic Means” establishes a uniform procedure for the magistrate to follow in considering information communicated by telephone or other reliable electronic means when reviewing a complaint or deciding whether to issue a warrant or summons.

In the Rules of Court, new Rule 5.1 on “Interstate Depositions and Discovery” establishes a uniform procedure on proceeding with discovery in North Dakota in an action pending in an out-of-state court.

This new rule was derived from the Uniform Interstate Depositions and Discovery Act, which has been adopted so far by 29 states.

In addition to the new rules, several procedural rule amendments will also take effect March 1. Here is a summary of these amendments:

Rule 5 - Service and Filing of Pleadings and Other Papers: The transferred language from Rule 4 will be made part in Rule 5(d)(2)(A). In addition, new language in the same section will require proof of service to be provided and filed by a party seeking to file an initiating pleading.

Rule 26 - General Provisions Governing Discovery: Rule 26(b)(1)(A) will now include a revised definition of “electronically stored information” and will designate what types of metadata may generally be discovered. In addition, Rule 26(f) has been amended to set out a new procedure for discovery meetings and conferences and for the formulation of discovery plans and reports, with an emphasis on discussing and planning for the discovery of electronic information.

Rule 45 – Subpoena: Rule 45 will direct practitioners to the new N.D.R.Ct. 5.1 for guidance on how to proceed with discovery in North Dakota in an action pending in an out-of-state court.

Rule 58 - Entry and Notice of Entry of Judgment: Rule 58(b) has been amended to require the prevailing party to identify the docket number and the date the judgment was signed in the notice of entry of judgment; to serve a copy of the judgment with the notice of entry; and to file the notice of entry of judgment, but not the copy judgment. The “docket number” mentioned in the amendments refers not to the case number, but to the document ID number that is now available as soon as the judgment is filed through the Odyssey® electronic case filing system.

Rule 9 - Warrant or Summons upon Indictment or Information: Rule 9 has been amended to incorporate the provisions of Rule 4(b) concerning formal requirements for issuance of the warrant or summons. It will also allow the magistrate to issue a warrant or summons based on information communicated by telephone or other reliable electronic means under the procedure set out in new Rule 4.1.

Rule 17 – Subpoena: Rule 17 has been amended to direct persons to new N.D.R.Ct. 5.1 for direction on how to proceed with discovery in North Dakota in an action pending in an out-of-state court.

Rule 32.2 - Pretrial Diversion: Rule 32.2 has been amended to include payment of fees or costs as an additional condition to a pretrial diversion agreement.

Rule 41 - Search and Seizure: Rule 41 has been amended to delete former language on issuing a warrant by remote communications or electronic transmission and instead to allow the magistrate to issue a warrant based on information communicated by telephone or other reliable electronic means under the procedure set out in new Rule 4.1.

North Dakota Rules of Juvenile Procedure

Rule 13 – Subpoena: Rule 13 has been amended to direct persons to new N.D.R.Ct. 5.1 for direction on how to proceed with discovery in North Dakota in an action pending in an out-of-state court.

North Dakota Rules of Court

Rule 8.10 on extraordinary writs and Rule 8.1 on receivers will be renumbered as Rules 5.2 and 5.3. Chapter VIII of the court rules will be renamed “Family Law and Alternative Dispute Resolution” and will be reserved for rules falling into those categories.